Q?What kind of cases are heard in Municipal Court?

In New Jersey, Municipal Courts hear charges involving disorderly persons  allegations, drunk driving and other minor traffic infractions and violations of municipal ordinances, and minor drug charges. More serious criminal matters, known as indictable offenses, are heard in the Superior Court.

Q?Does this mean that cases in Municipal Court are not serious?

Absolutely not. Cases heard in Municipal Court may involve potential jail sentences of up to six months, and potential driver’s license suspensions of up to 10 years, in addition to fines of up to $1,000 per offense.

Q?What are my rights in Municipal Court?

In almost all cases, a defendant’s rights in Municipal Court are identical to the rights of a defendant charged with a major felony, such as murder. That means the State must prove, to the satisfaction of the Municipal Court Judge, the defendant’s guilt beyond a reasonable doubt.

Q?What are some typical disorderly persons or petty disorderly persons offenses?

Disorderly persons offenses include simple assault, possession of illegal drugs and a variety of theft crimes, including shoplifting. Petty disorderly persons offenses include harassment.

Q?What is my exposure if I am charged with a traffic offense?

The most serious traffic offense heard in Municipal Court is drunk driving. A conviction always involves both a driver’s license suspension (from three months to 10 years) as well as significant fines and surcharges. However, the vast majority of moving violations involve motor vehicle points, which in turn impact auto insurance rates.

Q?Do I have the right to request a jury trial?

No. In Municipal Court, the Judge decides guilt or innocence. The same Judge, if he finds a defendant guilty, then imposes the sentence.

Q?Do I have the right to a diversionary program instead of a trial or plea agreement?

Very possibly. New Jersey recently adopted a new program called Municipal Court Pretrial Intervention, and it applies to a broad (but not universal) list of charges. However, entry into this program is literally a "once in a lifetime" opportunity, so it must be exercised carefully and with an eye toward each person’s unique situation.

Q?If I don’t like the Municipal Court’s decision, do I have the right to an appeal?

The short answer is yes. Any decision of the Municipal Court, including the sentence itself, is subject to the right of Appeal within 20 days of the decision. However, the scope of Appeal is very limited. Rather than giving the defendant a fresh new trial, the Superior Court Judge hearing the Appeal simply reads the trial transcript and then decides whether the Municipal Court Judge acted appropriately. His means that a defendant needs to take his best shot in the Municipal Court, rather than waiting to be rescued in the Superior Court.

Q?Can any attorney represent me in a Municipal Court?

Yes, just as any doctor can theoretically treat any patient. However, just as in medicine, experienced lawyers develop areas of emphasis. A patient with a suspicious rash sees a dermatologist, not a radiologist. Similarly, a defendant seeking representation in Municipal Court should consult with an attorney who is experienced in handling municipal court matters and whose practice emphasizes Municipal Court.

Q?What are your qualifications as a family law attorney?

Our family law department has 99 years of family law experience combined.

Q?How much does a divorce cost?

Each case is different. The cost is based on an hourly rate. Suffice to say that the more acrimonious and the more difficult the case is to settle then the more expensive the case will be. Conversely, if there is no minor children or the parties are amicable then the cost may be modest.

Q?Why do I have to pay alimony?

Alimony depends on numerous factors, the most of important of which are:

  1. The length of the marriage
  2. The income of each of the parties
  3. The marital standard of living
Q?What is a custody award based on?

Custody is based on the best interests of the children. This includes, but is not limited to:

  1. Who has been responsible for raising the children
  2. Appropriate housing
  3. Ability based on work schedule
  4. Depends on aging children , the child’s preferences
  5. Various other statutory factors.
Q?How much child support will I be responsible for or will I receive?

Child support is based on a guidelines formula which takes into account the parties respective incomes, daycare costs, health insurance costs, parenting time schedules and other factors.

Q?How fast can I get divorced?

In New Jersey it is much easier to obtain a divorce than in decades past; the most popular causes of action include irreconcilable differences for more than six months, or no-fault divorce which requires an 18-month separation, extreme cruelty and adultery.

Q?What type of parenting time (visitation) will I receive or be required to provide?

There is no set parenting time schedule. It is what is in the best interests of the children. It can be every other weekend or significantly less than this or significantly more than this depending on the circumstances of the case.

Q?Can I relocate out of state?

If the children have lived in New Jersey for more than five years or were born in New Jersey, you will need the Court’s approval or the written consent of the other party. The main issues are whether the moving parent can show a good faith reason for the move and that the move would not be harmful to the best interests of the children.

Q?Will the other side be responsible for my counsel fees?

Possibly. A counsel fee award is based on the income differential of the parties and the good or bad faith positions of each of the parties.  You are still responsible to pay your attorney for fees and costs up front and may be awarded reimbursement from the other party.

Q?How is property divided?

Generally the property acquired from date of marriage to date of the filing of the divorce complaint is equitably divided. This depends on several factors. Exceptions to equitable distribution include gifts and inheritance.  Premarital property is generally excluded but depending upon the particular facts could be included in certain circumstances. (See statutory factors for Equitable Distribution)

Q?Who is responsible for college contribution?

In New Jersey both parents can be responsible for paying  a children’s college costs. New Jersey is one of the few states that require divorced parents, in appropriate circumstances, to contribute to their children’s college costs. (See statutory factors for College Contribution)

Q?If a student receives Special Education services, does he or she need to be in a separate class?

No. The law requires districts to take all reasonable actions to appropriately educate a Special
Education student in a mainstream environment.

Q?What is a “free and appropriate education” (FAPE)?

A free and appropriate education, or FAPE, is defined in the 3rd student derives a meaningful benefit from his or her education and an opportunity for significant learning.

Q?What is the difference between an IEP and 504 Plan?

An Individualized Education Plan, or IEP, is a plan for students who require Special Education services; a 504 plan is a plan for students who have a disability but do not require Special Education services, only accommodations.

Q?Is Special Education limited to only students with academic disabilities?

No. Special Education applies to a wide range of disabilities, including neurological and emotional disabilities.

Q?Are all students with a disability eligible for an IEP?

No. Disability on its own is not enough to warrant an IEP. The disability must cause the student to require specialized educational services.

Q?Are social skills part of Special Education?

Yes. Social skills and life skills are part of Special Education services.

Q?When do Special Education services end?

The end of the school year the student turns 21, or the date the district graduates the student
from high school, whichever comes first.

Q?What is a “manifestation determination”?

It is a determination that must be made by the district’s Child Study Team prior to a disabled student receiving a long term suspension or expulsion. If the Child Study Team finds that the conduct which triggered the long term suspension or expulsion is a manifestation of the student’s disability or that the conduct was caused by the District’s failure to have an appropriate IEP or the student, the district may be prohibited from giving the long term suspension or expelling the student.

Q?What are “out of district placements”?

When a school district is unable to provide appropriate services for a student in district, a
district may place a student in a public or private out of district educational program.

Q?What is “stay put”?

Stay put is a mechanism that prevents a school district from unilaterally changing an IEP. In the event a parent files for due process within 15 days of the date the district proposed a new IEP for the student, the district may be prevented from changing the IEP until there is a hearing on the issue, having the student “stay put” until the issue is resolved.

Q?Are there felonies and misdemeanors in NJ?

New Jersey does not have a system of felonies and misdemeanors. Instead, New Jersey has 1st, 2nd, 3rd, and 4th degree crimes, the 1st degree being the most severe. New Jersey also has quasi criminal offenses, such as disorderly persons offenses, petty disorderly offenses and municipal

Q?What is a pre-indictment conference?

This is a conference with the prosecutor, prior to the case being sent to the Grand Jury for indictment.

Q?What is indictment?

New Jersey requires that all 1st, 2nd, 3rd and 4th degree offenses be submitted by the prosecutor to the Grand Jury for indictment. The Grand Jury must find probable cause for the case to go forward.

Q?What is pre-trial intervention (PTI)?

PTI is a program, mainly for first time offenders, that allows the defendant to avoid jail
time, and potentially a criminal record, by completing certain conditions set up by a probation officer. If the defendant successfully completes PTI, their charges may be dismissed or reduced. If the defendant does not successfully complete PTI, then the charges will move forward to a trial.

Q?What is expungement?

Expungement allows an individual with one or less adult conviction to have their record erased after certain conditions are met. In limited circumstances, an individual can have more than one disorderly persons offense or petty disorderly persons offense expunged.

Q?Is an Estate Plan expensive?

In most cases, the cost of an Estate Plan is minimal particularly when you take into consideration the additional costs to your Estate, and the additional stress on your family, should you not have an Estate Plan.

Q?Can’t I just give away as gifts most or all of my assets shortly before I die and avoid Estates Taxes?

Generally No,  for New Jersey Estate Tax purpose, any gifts you make within three (3) years of your death are added back to your Estate, as if you owned such property at the time of your death.

For Federal Estate Tax purposes, gifts made at anytime during your lifetime, in excess of the annual exclusions for the year in which you made the gift, will be added back to your Estate as if you owned the gifted property at the time of your death.

One of the primary benefits of gifting is that the appreciation on the gifted property will, in most cases, not be included in your Estate and will not be taxed.

The negative of gifting, which many people overlook, is that the beneficiary of the gift loses the benefit of receiving a stepped up basis on the gift received, and will pay more income taxes when the gifted property is sold.

Q?Is a Will the same as an Estate Plan?

No. A Will is only one component of an Estate Plan.
An Estate Plan generally consists of a:

  1. Will
  2. Durable Powers of Attorney
  3. Advance Health Care Directive (i.e., a Living Will)
Q?If I have a Durable Power of Attorney, do I need a Will?

Yes. A Durable Power of Attorney grants someone you designate the power to make decisions for you and to act on your behalf while you are alive. It does not transfer any of your property upon your death or allow that person to act for you after your death.

Q?If I grant someone a Power of Attorney, when can such person make decisions for me?

There are two different types of Powers of Attorney. One kind allows a person to immediately start making decisions for you and acting on your behalf. The other type, known as a "Springing Power of Attorney" only allows the person you designate to make decisions and act on your behalf after you become disabled.

Q?If I am not wealthy, do I still need a Will?

Yes in most cases, particularly if you have any minor children, unless you want a Judge, who does not know you or your children to decide with whom your children will live and how your children should be raised. The Judge will also decide who will handle your financial affairs after death, and that person can be a stranger and will be paid by your Estate as permitted by statute.

Furthering additional expenses may be incurred by your Estate (money that could have gone to your spouse or children).

Q?Does everyone need a Will?

Most people need a Will. See the answer to Question above.

However, no Will may be needed if you have no minor children, and all of your assets are owned jointly with your spouse or with right of survivorship or if your estate is comprised solely of pension plans, IRA’s and/or 401(k) plans under which you have designated beneficiaries.

Q?Do I need a “Living Trust”?

No, in most situations, unless you are a resident of or own property in Florida or California.

Having a living trust can save you the cost of probate but in New Jersey, for example, the
cost of preparing and administering the living trust can exceed the cost of probate which is minimal.

Q?Do I need a Living Trust to save taxes?

No. The provisions that will save you taxes can be in your Will or in a regular Trust.

Q?Are Life Insurance Proceeds Tax Free?

Yes as to income taxes (in most cases). No, as to Federal Estate Tax, as they are part of your Gross Estate, unless the policy is not owned by you, and you have no incidents of ownership with respect to the insurance policy.